Implementation of Prison Rape Elimination Act
Adopted Rules: Closed to Comments
Statement of Basis and Purpose of the Rules
Under § 626(e) of the New York City Charter, the Board of Correction (“Board”) is authorized to establish minimum standards “for the care, custody, correction, treatment, supervision, and discipline of all persons held or confined under the jurisdiction of” the New York City Department of Correction (“Department”). Pursuant to this authority, the Board has created a new chapter of its rules containing Minimum Standards that are designed to detect, prevent and respond to sexual abuse and sexual harassment of persons incarcerated in jails and other facilities operated by the Department.
In April 2015, the New York City Public Advocate Letitia James petitioned the Board to adopt rules consistent with national standards that the Department of Justice (“DOJ”) had promulgated pursuant to the Prison Rape Elimination Act of 2003 (“PREA”), 42 U.S.C. § 15601, et seq., in response to the epidemic of sexual violence in the nation’s prisons and jails. The Board accepted the petition at its June 9, 2015 meeting, and after several months of fact-finding by the Board’s ad hoc PREA Committee, developed proposed rules which incorporate in whole or in part many elements of the national standards (“PREA Standards”).
The Board received written comments on the proposed rules from over 60 organizations, and over 60 individuals, and two New York City Council Members. In addition, 31 people spoke at the July 26, 2016 public hearing, including representatives of the Public Advocate and the Department. Thereafter the Board’s ad hoc PREA Committee reviewed all of the comments and made some revisions to the rules.
In recognition of the unique characteristics of individual correctional agencies, facilities and inmate populations nationwide, the PREA Standards afford discretion and flexibility to agencies in combating sexual violence. Consistent with this approach, the rules require action that is specifically tailored to detecting, preventing and responding to sexual abuse and sexual harassment in the New York City jails, including specific provisions proposed by the Public Advocate and other stakeholders. The rules do not incorporate certain sections of the PREA Standards that the Board concluded were not applicable to the Department or, in several instances noted below, not appropriate to apply to the Department.
The rules also contain provisions that will enable the Board to assess the Department’s compliance with them. These provisions require, for example, that the Department provide the Board with written directives or policies effectuating certain elements of the rules, periodic progress reports — particularly with respect to provisions that require an extended period of time to implement — and semiannual reporting of incident data that will allow the Board to track sexual abuse allegations and outcomes.
The rules are embodied in a new chapter of the Board’s Minimum Standards, which is divided into subchapters that correspond to the subject matter categories into which the PREA Standards are grouped. Additionally, each rule that is modeled on a PREA Standard is denoted by the name of the PREA Standard section heading on which it is based.
Following is a descriptive summary of the rules, including revisions that were made following the public hearing on July 26, 2016.
Subchapter A: Definitions §§ 5-01 and 5-02
Rule § 5-01(“General Definitions”) sets forth definitions of terms used throughout Chapter 5 and is derived in part from PREA Standard § 115.5.
Rule § 5-02 (“Definitions related to sexual abuse”) adopts the definitions of “sexual abuse” and “sexual harassment” in PREA Standard § 115.6.
Subchapter B: Prevention Planning §§ 5-03 – 5-09
Prevention planning is key to eliminating or reducing sexual violence in correctional settings. Subchapter B of the rules, which incorporates PREA Standards § 115.11 and §§ 115.13 - 115.18, mandates implementation of the prevention measures described below.
Zero Tolerance Policy; Appointment of PREA Coordinator (§ 5-03)
Rule § 5-03 requires the Department to have a written policy mandating “zero tolerance toward all forms of sexual abuse and sexual harassment,” and requires the Department to designate a PREA coordinator and each facility to designate a PREA compliance manager with sufficient time and authority to coordinate compliance efforts. This rule incorporates PREA Standard § 115.11.
Staffing Plans (§ 5-04(a)-(f))
Rule § 5-04 requires, among other things, each Department facility to develop and document a staffing plan, taking into account a set of specified factors, that provides for adequate levels of staffing, and video monitoring where applicable, to protect inmates against sexual abuse. The rule also requires all facilities to annually assess, determine, and document whether adjustments are needed to the staffing levels or deployment of monitoring technologies. Rule § 5-04 further requires that the Department ensure that each of its facilities develops, documents and makes its best efforts to comply with a staffing plan by January 31, 2018 (§ 5-04(a)). During the period of time leading up to this implementation date, § 5-04(c) requires the Department to provide semiannual written reports to the Board of its progress toward ensuring system-wide implementation of this rule.
Rule 5-04 incorporates PREA Standard § 115.13, but also adds reporting requirements so that the Board can track the Department’s progress in the development and implementation of facility staffing plans, including any deviations or adjustments thereto (§ 5-04(c), (d) and (f)).
Video Surveillance (§ 5-04 (g), (h), (i) and (l))
Rule § 5-04 also addresses the vital importance of video camera surveillance in preventing and responding to sexual abuse. In response to comments on the proposed rule, a new subdivision (g) has been added to the rule, which provides that by July 31, 2017, the Department shall institute a one-year pilot program to install video surveillance cameras in Department vehicles used to transport inmates. By September 1, 2018, the Department shall provide a written report to the Board evaluating the results of the pilot, including any benefits or challenges associated with the installation of cameras in inmate transport vehicles (§ 5-04(g)).
Subdivisions (h) and (i) of the rule require the Department to address the potential need for additional camera installation after the Nunez Agreement ends. Section 5-04(h) provides that after termination of the Agreement, the Department must provide the Board with the Department’s surveillance camera installation protocol, which must be designed to ensure that, to the extent necessary and feasible, additional surveillance cameras will be installed. For assessment purposes, the Department must also provide annually a written report to the Board of actions taken pursuant to this protocol.
After the Nunez Agreement terminates, section 5-04(i) requires the Department to provide the Board with its surveillance camera maintenance protocol, which must be designed to ensure that all surveillance cameras are maintained to function properly and any required repairs are timely made. The Department must provide annually a written report to the Board of action taken pursuant to this protocol.
To ensure that video footage of sexual abuse incidents is preserved for investigative and prosecutorial purposes, § 5-04(j) provides that when the Department is notified of a sexual abuse incident within 90 days of the incident, video capturing the incident will be preserved until the longer of two specified time periods has elapsed.
Monitoring Rounds (§ 5-04 (k) and (l))
Rule § 5-04(k), which incorporates PREA Standard § 115.13(d), requires that supervisors conduct and document unannounced rounds to identify and deter staff sexual abuse and sexual harassment. Certain language was added to subdivision (k) of the proposed rule; namely, that monitoring rounds must be conducted at “unpredictable and varied times,” and the Department must issue a written directive to staff regarding these rounds and provide this directive to the Board.
A subdivision (l) was added to the proposed rule, which states that the Department must have a written policy requiring it to consider whether it is feasible to place a surveillance camera in an area where sexual abuse is repeatedly alleged to have occurred or to consider alternative preventive measures, such as increased monitoring rounds or the assignment of additional Department staff in that area.
Youthful Inmates (§ 5-05)
Rule § 5-05, which incorporates PREA Standard § 115.14, prohibits placement of adolescent inmates (under the age of 18) with adult inmates (ages 18 or older) in housing units in which the adolescents would have “sight, sound or physical contact” with adult inmates through use of a shared common space, shower area or sleeping quarters (§ 5-05(a)).
Section 5-05 also requires “sight and sound separation” between adolescents and adults in areas outside of housing units unless there is “direct staff supervision” (§ 5-05(b)).
Limits to cross-gender viewing and searches (§ 5-06)
Rule § 5-06 incorporates PREA Standard § 115.15. In addition, text was added to § 5-06(f), as was a subdivision (h), before the proposed rules were published.
Subdivisions 5-06(a) and (b) generally prohibit cross-gender strip searches (and pat-down searches of female inmates by male officers), except in exigent circumstances. Subdivision (d) of the rule requires implementation of policies and procedures to protect inmates from being viewed by correctional staff of the opposite gender when showering, performing bodily functions or changing clothing.
Subdivision (e) prohibits the Department from searching or physically examining a transgender or intersex inmate solely to determine the inmate’s genital status, while subdivision (f) requires the Department to train security staff in how to conduct cross-gender pat-down searches, and searches of transgender and intersex inmates, in a professional and respectful manner, and in the least intrusive manner possible consistent with security needs.
In recognition of the fact that transgender individuals are among those with the highest rates of sexual victimization while incarcerated, the Board added a provision to proposed § 5-06(f) requiring the Department, when conducting searches of transgender and intersex inmates, to “make its best efforts to treat transgender and intersex inmates in accordance with their gender identity” unless exigent circumstances require otherwise.
The Board also added a requirement to the proposed rule that the Department issue a directive to staff incorporating the provisions of § 5-06 and provide this directive to the Board (§ 5-06(g)).
Inmates with Disabilities and Inmates Who Are Limited English Proficient (§ 5-07)
Rule § 5-07, which incorporates PREA Standard § 115.16, requires the Department to take appropriate steps to ensure that inmates with disabilities or other limitations or who are limited English proficient have an equal opportunity to participate in or benefit from all of the Department’s efforts to prevent, detect and respond to sexual abuse and sexual harassment.
Hiring and Promotion Decisions (§ 5-08)
Rule § 5-08 incorporates PREA Standard § 115.17 for the Department, and for CHA where legally permissible. This section:
•Prohibits the Department from hiring or promoting anyone who may have contact with inmates who has engaged in sexual abuse in an institutional setting, has been convicted of engaging in sexual activity in the community facilitated by force, the threat of force, or coercion, or who has been civilly or administratively adjudicated to have engaged in such activity (§ 5-08(a); PREA Standard § 115.17(a)(1)-(3)).
•Requires the Department to consider any incidents of sexual harassment in determining whether to hire or promote anyone who may have contact with inmates (§ 5-08(b); PREA Standard § 115.17(b)).
•Requires the Department to either conduct criminal background records checks at least every five years of current employees, contractors and volunteers who may have contact with inmates or have in place a system for otherwise capturing such information for current employees (§ 5-08(d) and (e); PREA Standard § 115.17(d) and (e)). Section 5-08(e) also makes CHA subject to this requirement.
•Requires that the Department and CHA, unless they are prohibited by law, provide information on substantiated allegations of sexual abuse or sexual harassment involving a former employee upon receiving a request from an institutional employer for whom such employee has applied to work (§ 5-08(i); PREA Standard § 115.17(c)(2)).
Upgrades to Facilities and Technologies (§ 5-09)
Rule § 5-09, which incorporates PREA Standard § 115.18, requires the Department to take into account the effect of any changes on efforts to combat sexual abuse when designing or expanding facilities and when installing or updating video monitoring systems or other monitoring technology.
Subchapter C: Responsive Planning §§ 5-10 and 5-11
Subchapter C includes rules designed to ensure that any physical evidence of sexual abuse is immediately preserved and collected and that victims are afforded rape crisis counseling.
Evidence Protocol and Forensic Medical Examinations (§ 5-10)
Rule § 5-10(a)-(c), which incorporates PREA Standard § 115.21(a)-(c), requires the Department to, among other things:
•Follow a uniform evidence protocol that “maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions” (§ 5-10(a), (b)); and
•Offer all victims of sexual abuse access to forensic medical examinations, whether on-site or at an outside facility, without cost, where evidentiarily or medically appropriate. Such examinations shall be performed by Sexual Assault Forensic Examiners or Sexual Assault Nurse Examiners where possible (§ 5-10(c)).
In crafting the final version of PREA Standard § 115.21, DOJ recognized the unique role of rape crisis center advocates in supporting victims throughout the forensic medical examination and investigatory interviews, especially given that inmate victims may be reluctant to confide in correctional agency staff due to real or perceived bias and fear of retaliation. For this reason,
§ 115.21(d) requires correctional agencies to attempt to make available to victims a victim advocate from a rape crisis center.
The consensus among the Public Advocate and other stakeholders with whom the PREA Committee discussed this issue is that the delivery of rape crisis intervention and counseling services to inmates in the facilities in which they are housed (referred to below as the “Initiative”) is the most effective way of ensuring that victims of sexual abuse obtain the emotional support they need to proceed with forensic examinations and investigatory interviews that are key to successful criminal prosecutions and/or administrative proceedings. These services are also essential in helping inmates overcome the trauma of having been sexually abused.
In response to comments received on proposed § 5-10, the rule has been revised to state that these services shall be “offered and delivered to inmates in the facility in which they are housed, and “CHA shall be responsible for the delivery of such services by qualified victim advocates” (§ 5-10(d)). Thus, Department employees will not be involved in providing these services. In addition, in response to comments on the proposed rule, a new subdivision (g) has been added, which provides that such services shall be offered as soon as possible after an incident of alleged sexual abuse is reported, but in no event later than one week after the report is received by the Department or CHA.
Rule § 5-10’s other requirements include:
•Subject to the requirements of § 5-21(d), victim advocates shall assure inmates who request these services that all communications will be kept confidential (§ 5-10(f)).
•As requested by the victim, a victim advocate must accompany and support the victim through the forensic medical examination process and investigatory interviews, and to provide emotional support, crisis intervention, information and referrals (§ 5-10(e); PREA Standard §115.21(e)).
•Prior to implementation of this Initiative, CHA must provide the Board with a written plan describing, among other things, the services to be provided; the credentials of the victim advocates, privacy and confidentiality of in-person, written and telephone communications between inmates and advocates; and communications to inmates about these services (§ 5-10(h)).
•Given that it will take a period of time to plan and implement this Initiative, CHA must provide the Board with a quarterly report of its progress toward implementation (§ 5-10(i)).
•After the Initiative is implemented, CHA shall provide annually to the Board a written report assessing the Initiative’s effectiveness, which shall include the number of inmates who received such services during the reporting year (§ 5-10(j)).
Policies to Ensure Referrals of Allegations for Investigations (§ 5-11)
Rule § 5-11, which incorporates subdivisions (a), (b) and (c) of PREA Standard § 115.22, requires, among other things, that the Department ensure that an administrative or criminal investigation is completed for all allegations of sexual abuse and sexual harassment.
Subchapter D: Training and Education §§ 5-12 – 5-16
The rules in Subchapter D require training on key topics related to preventing, detecting and responding to sexual abuse (§ 5-12 on employee training; § 5-13 on volunteer and contractor training), and special training of investigators (§ 5-15) and medical and mental health care practitioners (§ 5-16)). These rules incorporate PREA Standards §§ 115.31, 115.32, 115.34 and 115.35.
Since system-wide employee training must be conducted on a schedule that ensures adequate Department and CHA staff coverage at all times, such training may need to be conducted over an extended period of time. In response to the Department’s concerns about the deadline for completion of all employee training in the proposed rules, and the simultaneous deadlines for completion of training required under the Nunez Agreement, a new subdivision (f) of section 5-12 now requires that specific percentages of employees be completed by specified dates. In order to review progress toward this goal, § 5-12(g) requires the Department and CHA to give a quarterly written report to the Board of the number of their respective employees who have been trained in accordance with this rule.
In response to comments received after the proposed rules were published, a new subdivision (h) was added to § 5-12. This subdivision requires that the training of Department and CHA staff on working with inmates who are transgender or intersex include the psychosocial and safety needs of such persons in custody and instructions on communicating with them in a manner that is respectful of their gender identity.
Also in response to comments on proposed §5-12, a new subdivision (i) has been added, which requires the Department and CHA to provide the Board on an annual basis the training schedules, training curriculum and credentials of the persons providing such training.
Rule § 5-14 (“Inmate education”), which incorporates PREA Standard § 115.33(a), requires the Department to explain its zero-tolerance policy to inmates during the intake process and to educate inmates on how to report incidents of sexual abuse and sexual harassment (§ 5-14(a)).
Rule § 5-14(b), which incorporates PREA Standard § 115.33(b), requires that, within 30 days of intake, the Department provide “comprehensive education” to inmates either in person or through video regarding their rights to be free from sexual abuse and sexual harassment and to be free from retaliation for reporting such incidents, and regarding Department policies and procedures for responding to such incidents. Following publication of the proposed rules, a new subdivision (g) was added, which provides that the Department shall annually provide to the Board the inmate education schedules, education curriculum, and the credentials of the persons providing such education to inmates.
Subchapter E: Screening for Risk of Victimization and Abusiveness
§§ 5-17, 5-18, and 5-19
Rules §§ 5-17 and 5-18, which incorporate PREA Standards §§ 115.41 and 115.42, require the Department to screen inmates for their risk of being sexually abused or sexually abusive (§ 5-17), and to use that screening information to inform housing, bed, work, education and program assignments (§ 5-18). The goal is to keep inmates at high risk of victimization away from inmates at high risk of committing abuse.
In response to comments about the proposed rule, two provisions have been added to § 5-18.
A new subdivision (d) provides that the Department shall not assign a transgender or intersex inmate to a men’s or women’s facility based solely on the inmate’s external genital anatomy.
A new subdivision (h) was also added in response to comments on proposed § 5-18. This subdivision provides that the Department shall notify the Board, in writing, of each placement of a transgender or intersex inmate, all information considered in making, and the reasons for, its housing determination. The Department shall provide the Board with such information after the housing determination is made.
Rule § 5-19(a)-(e) (protective custody), which incorporates PREA Standard § 115.43, prohibits the placement of inmates at risk of sexual victimization in segregated housing for that reason against their will, unless certain conditions are met. These conditions include placement in involuntary segregated housing only until an alternative means of separation from likely abusers can be arranged; and that such assignment may not ordinarily exceed 30 days.
Subdivision (f) of § 5-19 requires the Department to issue a written directive to staff incorporating the provisions of this rule and provide this directive to the Board. To enable the Board to ascertain and assess the involuntary placement of at-risk inmates in segregated housing, subdivision (h) requires the Department to provide the Board with a quarterly report detailing the basis for such placements and why no alternative means of separation could be arranged, and the number of inmates who remain in involuntary segregated housing for more than 30 days.
Subchapter F: Reporting §§ 5-20, 5-21 and 5-22
Sexual abuse in the nation’s prisons and jails is significantly underreported. The rules in Subchapter F, which incorporate PREA Standards §§ 115.51, 115.53 and 115.54 (with certain additions), seek to expand the reporting of incidents of sexual abuse and sexual harassment.
Inmate Reporting (§ 5-20)
Rule § 5-20 requires the Department to:
•Provide at least two internal methods for inmates to first report sexual abuse, sexual harassment and retaliation (§ 5-20(a); see PREA Standard § 115.51(a)).
•Provide at least one way for inmates to report abuse to an entity that is not part of the Department and that allows inmates to remain anonymous upon request (§ 5-20(b); see PREA Standard § 115.51(b)).
•Requires the Department staff to accept reports made verbally, in writing, anonymously, and from third parties and to promptly document any verbal report (§ 5-20(c); PREA Standard § 115.51(c)).
•Include all the ways inmates can report such information on posters in all housing units, intake and program areas, clinics and mess halls, in the Inmate Handbook and Visitors Handbook, and on the Department’s website (§ 5-20(d)).
•Provide a method for staff to privately report sexual abuse and sexual harassment (§ 5-20(e); see PREA Standard § 115.51(d)) and issue a written directive to all staff explaining how staff can privately report such information and all the ways inmates can do so, and provide this directive to the Board (§ 5-20(f)).
Inmate Access to Outside Confidential Support Services (§ 5-21)
Rule § 5-21(a), which incorporates PREA Standard § 115.53, requires the Department to provide inmates with access to outside victim advocacy organizations for confidential emotional support services related to sexual abuse as confidentially as possible. Subdivision (b) requires the Department to inform inmates, prior to giving them access, of the extent to which such communications will be monitored and the extent to which reports of abuse will be forwarded to authorities in accordance with mandatory reporting laws. Subdivision (c) provides that the Department shall maintain or attempt to enter into agreements with community service providers to provide these services.
Third Party Reporting (§ 5-22)
Rule § 5-22, which incorporates PREA Standard § 115.54, requires that the Department establish a way to receive third-party reports of sexual abuse and that it distribute information on how to report sexual abuse on behalf of an inmate (§ 5-22(a); see PREA Standard §115.54). Subdivision (b) of § 5-22 requires the Department to include in its Visitors Handbook and post on its website how third parties can report sexual abuse and sexual harassment on behalf of an inmate.
Subchapter G: Official Response Following an Inmate Report §§ 5-23 – 5-29
The rules in Subchapter G require the Department and CHA staff to respond quickly, effectively, and in a coordinated fashion to a report of sexual abuse to ensure that physical evidence is preserved and collected, the privacy of the victim is maintained, and the victim is protected from the alleged abuser and from retaliation. Sections 5-23 through 5-29 incorporate PREA Standards §§ 115.61-115-65, 115.67 and 115.68 (with the additions noted below).
Staff and Agency Reporting Duties (§ 5-23)
Rule § 5-23 (modeled on PREA Standard § 115.61) requires, among other things, that the Department report immediately any “knowledge, suspicion or information” regarding an incident of sexual abuse or sexual harassment, retaliation against inmates or staff who report such an incident, or any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation (§ 5-23(a); compare to PREA Standard § 115.61(a)). The rule also requires that, unless otherwise precluded by federal, state or local law, medical and mental health practitioners must report sexual abuse and must inform inmates of the practitioner’s duty to report and the limitations of confidentiality (§ 5-23(c) and (d)).
Agency Protection Duties (§ 5-24)
Rule § 5-24 incorporates PREA Standard § 115.62, requiring the Department to act immediately to protect an inmate whenever it learns that the inmate faces a substantial risk of imminent sexual abuse.
Reporting to Other Confinement Facilities (§ 5-25)
Rule § 5-25 incorporates PREA Standard § 115.63, and requires a facility that receives an allegation that one of its inmates was sexually abused while confined at another facility to so inform the other facility within 72 hours. The facility receiving such notification must investigate the incident.
Staff First Responder Duties (§ 5-26)
Rule § 5-26, which incorporates PREA Standard § 115.64, sets forth first responder responsibilities, in recognition of the fact “that staff must be able to adequately counsel victims while maintaining security and control over the crime scene so that any physical evidence is preserved until the investigator arrives.”
Specifically, § 5-26(a) requires that the first security staff member to respond to the report separate the abuser and victim, preserve any crime scene, and request that the victim and ensure that the abuser not take any actions that could destroy physical evidence.
Section § 5-26(b) requires that where the first staff responder is not a security staff member, the responder must request that the victim not take any actions that could destroy physical evidence, and then must notify security staff.
Coordinated Response (§ 5-27)
In response to comments received on proposed rule § 5-27, which incorporates PREA Standard § 115.65, the rule was revised. Instead of requiring the Department to develop individual facility plans, the rule now requires development of a system-wide written plan to coordinate responses to an incident of sexual abuse among staff first responders, medical and mental health practitioners, DOI, or investigators in DOC’s Investigation Division (“ID”), and facility leadership.
Protection against Retaliation and Post-Allegation Protective Custody (§§ 5-28 and 5-29)
Retaliation for reporting incidents of sexual abuse and cooperating with sexual abuse investigations is a serious concern in correctional facilities. Thus, rules §§ 5-28 and 5-29, which incorporate PREA Standards §§ 115.67 and 115.68, require the Department to take certain preventive and remedial actions, including:
•Establishing a policy to protect all inmates and staff who report sexual abuse or sexual harassment, or cooperate with investigations of such incidents, from retaliation by other inmates or staff and issuing a written directive to all staff embodying this policy (§ 5-28(a); see PREA Standard § 115.67(a)).
•Employing multiple protection measures, such as housing changes or transfers for inmate victims or abusers, removal of staff or inmate abusers from contact with victims, and emotional support services for inmates or staff who fear retaliation for reporting sexual abuse or sexual harassment or for cooperating with investigations (§ 5-28(b); see PREA Standard § 115.67(b)).
•For at least 90 days following a report of sexual abuse, monitoring the conduct and treatment of inmates or staff who reported the sexual abuse and of inmates who were reported to have suffered sexual abuse to see if there are changes that may suggest possible retaliation by inmates or staff, and acting promptly to remedy any such retaliation (§ 5-28(c); see PREA Standard § 115.67(c)).
Finally, rule § 5-29, which incorporates PREA Standard § 115.68, requires that any use of segregated housing to protect a victim of sexual abuse be subject to § 5-19, discussed above.
Subchapter H: Investigations §§ 5-30, 5-31 and 5-32
The purpose of the rules in Subchapter H is to ensure that all investigations of allegations of sexual abuse and sexual harassment are conducted “promptly, thoroughly, and objectively”
(§ 5-30(a)). In the words of the National Prison Rape Elimination Commission: “Unless investigations produce compelling evidence, corrections administrators cannot impose discipline, prosecutors will not indict, and juries will not convict abusers.”
The focus of the PREA Committee’s key findings was the quality of the Department’s investigations of staff-on-inmate sexual abuse and harassment. The Committee concluded that these investigations were deficient in terms of timeliness, thoroughness and objectivity. This is borne out by the fact that over a three-year period (2013-2015), only five (5) out of 294 allegations of staff-on-inmate sexual abuse were substantiated. Thus, the rules incorporate PREA Standards §§ 115.71, 115.72 and 115.73 which address this issue, and add certain provisions designed to address specific deficiencies identified by the Board in its evaluation of Department investigations of sexual abuse and sexual harassment.
Criminal and Administrative Agency Investigations (§ 5-30)
Rules that incorporate PREA Standards on investigations include:
•The Department must investigate all allegations of sexual abuse and sexual harassment, including third-party and anonymous reports, and must do so “promptly, thoroughly, and objectively” (§ 5-30(a); see PREA Standard § 115.71(a)).
•Where sexual abuse is alleged, the Department must use investigators who have received special training in sexual abuse investigations pursuant to rule § 5-15 (§ 5-30 (b); see PREA Standard § 115.71(b)).
•Investigators must gather and preserve direct and circumstantial evidence, including any available physical and DNA evidence and any available electronic monitoring data; must interview alleged victims, suspected perpetrators, and witnesses; and must review prior complaints and reports of sexual abuse involving the suspected perpetrator (§ 5-30(c); see PREA Standard § 115.71(c)).
•The credibility of an alleged victim, suspect, or witness must be assessed on an individual basis and cannot be determined by the person’s status as an inmate or as staff. (§ 5-30(e); see PREA Standard § 115.71(e)).
•All investigations must include an effort to determine whether staff actions or failures to act contributed to the abuse, and must be documented in written reports that include a description of the physical, testimonial and documentary evidence, the reasoning behind credibility assessments, and investigative facts and findings (§ 5-30(f); see PREA Standard § 115.71(f)(1) and (2)).
•Substantiated allegations of conduct that appears to be criminal must be referred for prosecution (§ 5-30(h); see PREA Standard § 115.71(h)).
•The departure of the alleged abuser or victim from the employment or control of the Department or CHA cannot provide a basis for terminating an investigation (§ 5-30(j); see PREA Standard § 115.71(j)).
•When outside agencies investigate sexual abuse, the Department must cooperate with outside investigators and endeavor to remain informed about the progress of the investigation (§ 5-30(k); see PREA Standard § 115.71(k)).
Rules that were added by the Board to the PREA Standards include:
•The Department must use its best efforts to conduct an initial evaluation as to whether any involved staff member should be suspended, placed on modified duty, re-assigned to a no-inmate-contact post or reassigned to a restricted-inmate-contact post pending investigation within three business days after it receives a report of an alleged incident of sexual abuse or sexual harassment (“Referral Date”). If sexual abuse is alleged, the Department must conduct such an evaluation after consulting with DOI unless doing so would pose a threat to the safety and well-being of the victim (§ 5-30(l)).
•The Department must complete all investigations of sexual abuse and sexual harassment allegations no later than 90 days from the Referral Date, absent extenuating circumstances outside the Department’s control (which must be documented) (§ 5-30(m)).
•Inmates subject to alleged sexual abuse or sexual harassment must be interviewed within 72 hours of the Referral Date, absent unusual circumstances (which must be documented) (§ 5-30(o)).
•All interviews of staff allegedly involved in a sexual abuse or sexual harassment incident must be completed within 30 days of any immunity grants, absent unusual circumstances (which must be documented) (§ 5-30(p)).
•Requests for statements or interviews of inmates must be made off the living unit and cannot be made within sight or hearing of other inmates or of staff involved in the incident. Inmate interviews must be conducted in a private and confidential setting (§ 5-30(q)).
•At the conclusion of an investigation of alleged sexual abuse or sexual harassment, the Department must prepare a closing memorandum summarizing the findings of the investigation. The Department must also provide a copy of the closing memo to the Board (§ 5-30(r)).
The Department must issue a written directive to all ID staff that incorporates the provisions of
§ 5-30 and provide this directive to the Board (§ 5-30(t)). Additional related procedural protections that the Department has included in its PREA directive, but which are not specified in these rules, include:
•Efforts to obtain inmate statements must be documented in the investigation file, as must inmate refusals to provide a statement;
•Interviews of inmates must be recorded and a written summary of each interview must be prepared and included in the investigation file; and
•The Department must take reasonable steps to obtain relevant medical records in connection with allegations of sexual abuse in a timely manner.
Evidentiary Standard for Administrative Investigations (§ 5-31)
Rule § 5-31, which incorporates PREA Standard § 115.72, provides that the Department will impose no standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse or sexual harassment are substantiated.
Reporting to Inmates (§ 5-32)
Rule § 5-32, which incorporates PREA Standard § 115.73(a)-(e), requires, among other things, that:
•Upon completion of an investigation of alleged sexual abuse, the Department must inform the inmate whether the allegation was deemed substantiated, unsubstantiated or unfounded (§ 5-32(a); compare PREA Standard § 115.73(a)).
•If the Department did not conduct the investigation, it must request the relevant information from the investigating entity in order to inform the inmate (§ 5-32(b); compare PREA Standard § 115.73(b)).
•If an inmate alleges that a staff member committed sexual abuse against the inmate, the Department must inform the inmate (unless the Department has determined that the allegation is unfounded) whenever the staff member is (1) no longer posted in the inmate’s unit or facility, or (2) no longer employed at the facility; and whenever the Department learns that the staff member has been indicted on a charge related to the reported conduct or has been convicted on a charge related to sexual abuse within the facility (§ 5-32(c)(1)-(4); PREA Standard § 115.73(c)(1)-(4)).
•If an inmate alleges that another inmate committed sexual abuse against the inmate, the Department must inform the inmate whenever the Department learns that the abuser was indicted or convicted of a charge related to sexual abuse in the facility (§ 5-32(d); PREA Standard § 115.73(d)).
Subchapter I: Discipline (§§ 5-33, 5-34 and 5-35)
One of the primary goals of the PREA Standards, and of these rules, is to ensure that abusers and perpetrators of sexual harassment are punished. This, in turn, will deter others from engaging in sexual abuse and sexual harassment, and encourage the reporting of such incidents. The rules in Subchapter I set guidelines for imposing disciplinary sanctions on staff, contractors, volunteers and inmates who engage in sexual abuse or sexual harassment, and incorporate PREA Standards §§ 115.76, 115.77, and 115.78.
Rule § 5-33(a) provides that Department and CHA staff must be subject to disciplinary sanctions up to and including termination for violating agency sexual abuse or sexual harassment policies. Moreover, § 5-33(b) states that termination must be the “presumptive disciplinary sanction” for Department and CHA staff who have engaged in sexual abuse.
Rule § 5-34(a) provides that any contractor or volunteer who engages in sexual abuse must be prohibited from contact with inmates and must be reported to law enforcement agencies, unless the activity was clearly not criminal, and to relevant licensing bodies. Subdivision (b) requires the Department to take appropriate remedial measures and consider whether to prohibit further contact with inmates in the case of any other violation of sexual abuse or sexual harassment policies by a contractor or volunteer.
Rule § 5-35 enumerates disciplinary sanctions for inmates who sexually abuse other inmates. The rule states, among other things, that (1) the Department’s disciplinary process must consider whether an inmate’s mental illness contributed to his or her behavior in determining what type of sanction, if any, should be imposed (§ 5-35(c)); (2) the Department may discipline an inmate for sexual misconduct with staff only upon a finding that the staff member did not consent to such contact (§ 5-35 (d)); and (3) for the purpose of disciplinary action, a report of sexual abuse made in good faith based upon a reasonable belief that the alleged conduct occurred shall not constitute falsely reporting an incident or lying, even if an investigation does not establish evidence sufficient to substantiate the allegation (§ 5-35 (f)).
Subchapter J: Medical and Mental Care §§ 5-36, 5-37 and 5-38
Rule § 5-36 (“Medical and mental health screenings; history of sexual abuse”), which incorporates PREA Standards §115.81(c), (d) and (e), provides, among other things, that if the intake screening pursuant to rule § 5-17 indicates that an inmate has experienced prior sexual victimization (in an institutional setting or in the community), Department staff must ensure that the inmate is offered a follow-up meeting with a medical or mental health practitioner within 14 days of the intake screening.
Rule § 5-37 (“Access to emergency medical and mental health services”), which incorporates PREA Standard § 115.82, provides that inmate victims of sexual abuse (1) must be provided with timely and unimpeded access to free emergency medical treatment and crisis intervention services, and (2) must be offered timely information about and timely access to free emergency contraception and sexually transmitted infections prophylaxis where medically appropriate.
Rule § 5-38 (“Ongoing medical and mental health care for sexual abuse victims”), which incorporates PREA Standard § 115.83(a)-(g), provides that victims of sexual abuse must receive, without financial cost, medical and mental health evaluation and treatment, including follow-up services, treatment plans and referrals for continued care following their transfer to or placement in other facilities, or their release from custody.
Subchapter K: Data Collection and Review; Audits §§ 5-39, 5-40 and 5-41
One of the PREA Committee’s key findings was that the Department lacks a comprehensive, coherent and transparent process for collecting data concerning allegations of sexual abuse. This significantly impedes efforts to adjust policies, practices and strategies designed to prevent, detect and respond to sexual violence based on meaningful data review and analysis. Moreover, in the absence of an effective data collection process, the Board is unable to track, assess and monitor the Department’s compliance with its rules.
The rules in subchapter K are designed to obtain incident-specific and aggregate data about sexual abuse and sexual harassment allegations and the outcomes of resulting investigations that will (1) identify possible patterns of sexual abuse and sexual harassment, and help prevent future misconduct; and (2) enable the Board to assess improvement in the quality of the Department’s investigation of sexual abuse and sexual harassment allegations.
Some of the rules incorporate certain provisions of PREA Standards §§ 115.86, 115.87, 115.88 and 115.89 regarding data collection and include additional provisions that are designed to make the data tracking and the Board’s review of such data more robust and informative.
Sexual Abuse Incident Reviews (§ 5-39)
Rule § 5-39, which incorporates PREA Standard § 115.86, sets forth requirements for sexual abuse incident reviews at the conclusion of every sexual abuse investigation where the allegations have been deemed substantiated or unsubstantiated. Unlike a sexual abuse investigation, which is intended to determine whether the abuse occurred, a sexual abuse incident review is intended to evaluate whether the Department’s policies and procedures need to be changed in light of the alleged incident. The rule requires that specific factors be considered as part of this evaluation, including whether (1) race, ethnicity, sexual orientation, gang affiliation, or group dynamics in the facility played a role, (2) physical barriers in the facility contributed to the incident, (3) staffing levels need to be changed, and (4) more video monitoring is required (§ 5-39(d)(1)-(5); PREA Standard § 115.86(d)(1)-(5)).
Section 5-39 further provides that such reviews must “ordinarily occur within 30 days of the conclusion of the investigation” (§ 5-39(b)); the review team must prepare a report of its findings and submit the report to the facility head and PREA compliance manager (§ 5-39 (d)(6)); and the facility must implement the recommendations for improvement, or must document its reasons for not doing so (§ 5-39 (e)).
Finally, § 5-39(f) requires the Department to provide the Board with all sexual abuse incident reviews on a quarterly basis.
Data Collection and Review (§ 5-40)
Rule § 5-40 requires the Department to, among other things, provide the Board on a semiannual basis with data concerning each incident of alleged sexual abuse. Section 5-40 differs from PREA Standard § 115.87 (“Data collection”) in that the rule specifies each data point to be reviewed and collected (§ 5-40(d)). In addition, unlike the proposed rule, which called for reporting these data points on an aggregate basis, the rule now requires that these data points be collected and reported to the Board with respect to each incident of alleged sexual abuse
(§ 5-40(d)). This change was made to simplify and streamline the data collection and reporting process.
Subdivision (d) of rule § 5-40 specifies the incident-related data to be collected, including, for example:
•The date, time and location of the incident and the type of alleged sexual abuse (d)(1));
•Whether the alleged abuse was staff-on-inmate or inmate-on-inmate ((d)(2)).
•The type of alleged abuse ((d)(3));
•Certain demographic information such as the sex of the alleged perpetrator and the alleged victim and whether the alleged victim was known by the Department to be transgender or intersex (d)(4));
•Who reported the incident and the method of reporting ((d)(5) and (6)).
•Whether the incident occurred in an area subject to video camera surveillance ((d)(7)).
•Whether the victim was administered or declined a rape kit ((d)(10)).
•When the investigation was opened and closed ((d)(11) and (12)).
•Whether the alleged incident was deemed substantiated, unsubstantiated or unfounded ((d)(13)).
•If the alleged perpetrator was a staff person, whether previous allegations of sexual abuse or sexual harassment had been lodged against him/her ((d)(16)).
•Whether investigation of the allegation was assumed by DOI and, if so, the status of the investigation ((d)(18)).
•Whether the allegation was referred to a DA’s Office and if so, the outcome ((d)(20)).
•Whether the allegation was referred for Department disciplinary action and, if so, the outcome ((d)(21)).
Subdivision (g) of the rule requires the Department to review this incident data in order to assess and improve the effectiveness of its sexual abuse and sexual harassment prevention, detection, and response policies, practices, and training, including by (1) identifying the problem areas and trends, (2) taking corrective action, and (3) including in a semiannual assessment report to the Board its findings and corrective action for each facility, as well as the Department as a whole.
Section 5-40(i) requires the Department to make its semiannual assessment reports readily available to the public by posting them on the Department’s website. Subdivision (j) permits the Department to redact specific material from these reports when publication would, for example, present a clear and present danger to the safety and security of the facility.
Audits (§ 5-41)
Rule § 5-41 requires the Department to provide the Board with a copy of all audit reports, responses to audit reports, audit correction action plans, appeals of audit findings and decisions on appeal, which relate to audits of Department facilities or the Department as a whole pursuant to PREA Standards § 115.93 and §§115.401 through 115.405.
Subchapter L: Variances § 5-42
After publication of the proposed rules, a new rule § 5-42 was added, which permits the Department and CHA to apply for a variance from a specific subdivision or section of these rules in accordance with § 1-15 of Chapter 1 of the Board’s Minimum Standards.
Effective Date and Implementation Dates (Uncodified Rule §§ 2 and 3)
Section 2 of the rule states that the rules in Chapter 5 will become effective on January 2, 2017.
Certain of the rules, such as those requiring staff training, drafting of directives and policies, or preparation of reports, will not be implemented on the effective date. The implementation dates for these rules are specified therein and are also listed in a chart in uncodified § 3.